Australian Industrial Relations Commission
Encyclopedia
The Australian Industrial Relations Commission, or AIRC (known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission, and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission), was a tribunal
with powers under the Workplace Relations Act 1996
. It was the central institution of Australian labour law
. The AIRC replaced a previous system of industrial courts, which broadly speaking, was engaged in the same functions, but with superior independence and powers than the AIRC.
, an Act of the Parliament of Australia
. Its functions were to hear and arbitrate
industrial disputes, and to make awards
. It also had the judicial functions of interpreting and enforcing awards, and to hear other criminal and civil cases relating to industrial relations law. The court's first President was High Court
Justice Richard O'Connor
.
The early role of the Commonwealth Court of Conciliation and Arbitration was to resolve industrial disputes which extended beyond the limits of any one state. In practice this became a system of 'paper disputes' where a union or other employee organisation would write to a group of employers and demand certain terms and conditions (a log of claims, or log of demand). The Employers would then reject part or all of the demands creating an industrial dispute. This dispute would then be arbitrated on, the result of the arbitration was an industrial award.
The court was initially less important than the various State
commissions, which had jurisdiction over all disputes which occurred within states. The court's workload was so low that it only made six awards in the first five years after it was created. One of these early awards was the famous Harvester Judgment, delivered by H.B. Higgins, which first introduced the concept of the living wage
(also known as a basic wage). Another of its early acts was to set the standard working week
at 48 hours.
However through a sequence of High Court
authorities over the first twenty years of Federation, it became clear that by this process, the Commonwealth Court of Conciliation and Arbitration
could exercise broad jurisdiction over a wide range of industries. However, it could not create an industry wide award, rather all of the employers who were to be bound by the Award had to be personally involved in the dispute. (which in practice meant that a log of claims needed to be served on them).
The court was reformed in 1926 following amendments to the Conciliation and Arbitration Act. The changes included replacing the President with a Chief Judge alongside other judges, and ensuring that all cases involving the basic or living wage would be heard by a full bench of the court. The changes also allowed for the appointment of Conciliation Commissioners, with a role similar to mediators
.
The Conciliation and Arbitration Act has always been controversial and highly political. This is not surprising as it establishes the minimum wage regulator. The Commonwealth Court of Conciliation and Arbitration was almost dismantled by Prime Minister Stanley Melbourne Bruce in 1929. However William Morris Hughes crossed the floor and the legislation was voted down. The move proved politically unpopular and Stanley Melbourne Bruce became the first Prime Minister to lose his own seat in a Federal Election. (His party also lost the election). Subsequently no Prime Minister attempted to remove the wage setting powers of the Australian Industrial Relations Commission, until John Howard
in 2006 with the enactment of the WorkChoices
reforms.
In 1930, the court reduced the standard working week to forty four hours, down from forty eight. During the Great Depression
, the court reduced wages by 10%. In 1947, the working week was reduced again, to forty hours.
The court was changed again in 1947 to increase the role of the Commissioners, leaving the judges to conduct the judicial work, and a select few matters of arbitration including the basic wage and the minimum wage for women.
. The High Court held that the Court of Conciliation and Arbitration, as a tribunal
exercising the non-judicial power of arbitration
, could not also exercise judicial power
as a Chapter III Court
. The decision became an important demonstration of the separation of powers in Australia
.
) was created to exercise judicial powers.
The Australian Industrial Relations Commission (which was originally called the Australian Industrial Relations Court) was established under the Concilliation and Arbitration Act which was finally passed under the Government of Prime Minister Reid. By the time that the Act was passed two Prime Ministers (Watson
and Deakin
) had both lost their control of Parliament due to disagreements about the content of the Act.
Throughout its time the Commission created Awards which covered a whole raft of industries. These Awards with Awards made by Industrial Relations Commissions of the respective six states of Australia acted as the unique system of minimum wage setting in Australia. The Commission also registered a large number of trade unions to assist in the Award formation process.
The Commission is famous for its cases on equal work and equal pay, as well as decisions on unfair dismissal
, and redundancy pay.
One issue which dogged the Commission was that of what "pertained to the relationship between employer and employee". This had been a question of importance, since the Constitution required the Commission settle industrial disputes. These disputes were later categorised as a "dispute about matters which pertained to the relationship between employer and employee." The question continued to surface and in 2004 the High Court of Australia
in the case of Electrolux v AWU
applied the question (which had historically been applied to Awards) to Enterprise Bargaining Agreements. This led to around 6 months of industrial confusion until the Australian Industrial Relations Commission handed down the landmark decision of the Schefenacker, the Murray Bridge and the La Trobe University certified agreements (‘the three certified agreements case’). It was seen by many as fitting that the last significant decision made by the Australian Industrial Relations Commission was to conclusively determine which matter did or did not pertain.
The Australian Industrial Relations Commission would also certify enterprise bargaining agreements. These agreements were negotiation collective contracts commonly between a union (as representative of the employees on the site) and an employer of a site.
The Australian Industrial Relations Commission also registered trade unions and dealt with demarcation disputes between unions.
Finally the Australian Industrial Relations Commission dealt with unfair dismissal application.
laws effected at the end of 2005 the role of the AIRC has been redefined. Its wage setting powers have largely been transferred to the Australian Fair Pay Commission
. The AIRC's primary role will be award
"modernisation", limited dispute settling powers and hearing unfair dismissal applications.
Under the Rudd Labor Government the AIRC was abolished. Its functions were transferred to a division within Fair Work Australia
in January 2010.
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
with powers under the Workplace Relations Act 1996
Workplace Relations Act 1996
The Workplace Relations Act 1996 is an Australian law passed by the Howard Government after coming into power in 1996. It replaced the previous Labor Government's Industrial Relations Act 1988. It started operation on 1 January 1997 and provided for the continuation of the federal award system...
. It was the central institution of Australian labour law
Australian labour law
Australian labour law has had a unique development that distinguishes it from other English speaking jurisdictions.In 1904 the Conciliation and Arbitration Act was passed mandating "Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of...
. The AIRC replaced a previous system of industrial courts, which broadly speaking, was engaged in the same functions, but with superior independence and powers than the AIRC.
The Commonwealth Court of Conciliation and Arbitration
The court was created in 1904 by the Conciliation and Arbitration Act 1904Conciliation and Arbitration Act 1904
The Conciliation and Arbitration Act 1904 was an Australian Commonwealth Government Act "relating to Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of any one State", and was assented to on 15 December 1904, almost four years after...
, an Act of the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
. Its functions were to hear and arbitrate
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
industrial disputes, and to make awards
Award (Australian industrial relations)
An award is a ruling handed down by either Fair Work Australia or by a state industrial relations commission which grants all wage earners in one industry the same conditions of employment and wages....
. It also had the judicial functions of interpreting and enforcing awards, and to hear other criminal and civil cases relating to industrial relations law. The court's first President was High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
Justice Richard O'Connor
Richard O'Connor (Australian politician)
Richard Edward O'Connor, QC , Australian politician and judge, was a member of the first federal ministry.-Biography:...
.
The early role of the Commonwealth Court of Conciliation and Arbitration was to resolve industrial disputes which extended beyond the limits of any one state. In practice this became a system of 'paper disputes' where a union or other employee organisation would write to a group of employers and demand certain terms and conditions (a log of claims, or log of demand). The Employers would then reject part or all of the demands creating an industrial dispute. This dispute would then be arbitrated on, the result of the arbitration was an industrial award.
The court was initially less important than the various State
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
commissions, which had jurisdiction over all disputes which occurred within states. The court's workload was so low that it only made six awards in the first five years after it was created. One of these early awards was the famous Harvester Judgment, delivered by H.B. Higgins, which first introduced the concept of the living wage
Living wage
In public policy, a living wage is the minimum hourly income necessary for a worker to meet basic needs . These needs include shelter and other incidentals such as clothing and nutrition...
(also known as a basic wage). Another of its early acts was to set the standard working week
Working time
Working time is the period of time that an individual spends at paid occupational labor. Unpaid labors such as personal housework are not considered part of the working week...
at 48 hours.
However through a sequence of High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
authorities over the first twenty years of Federation, it became clear that by this process, the Commonwealth Court of Conciliation and Arbitration
could exercise broad jurisdiction over a wide range of industries. However, it could not create an industry wide award, rather all of the employers who were to be bound by the Award had to be personally involved in the dispute. (which in practice meant that a log of claims needed to be served on them).
The court was reformed in 1926 following amendments to the Conciliation and Arbitration Act. The changes included replacing the President with a Chief Judge alongside other judges, and ensuring that all cases involving the basic or living wage would be heard by a full bench of the court. The changes also allowed for the appointment of Conciliation Commissioners, with a role similar to mediators
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
.
The Conciliation and Arbitration Act has always been controversial and highly political. This is not surprising as it establishes the minimum wage regulator. The Commonwealth Court of Conciliation and Arbitration was almost dismantled by Prime Minister Stanley Melbourne Bruce in 1929. However William Morris Hughes crossed the floor and the legislation was voted down. The move proved politically unpopular and Stanley Melbourne Bruce became the first Prime Minister to lose his own seat in a Federal Election. (His party also lost the election). Subsequently no Prime Minister attempted to remove the wage setting powers of the Australian Industrial Relations Commission, until John Howard
John Howard
John Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
in 2006 with the enactment of the WorkChoices
WorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
reforms.
In 1930, the court reduced the standard working week to forty four hours, down from forty eight. During the Great Depression
Great Depression in Australia
Australia suffered badly during the period of the Great Depression of the 1930s. The Depression began with the Wall Street Crash of October, 1929 and rapidly spread worldwide. As in other nations, Australia suffered years of high unemployment, poverty, low profits, deflation, plunging incomes, and...
, the court reduced wages by 10%. In 1947, the working week was reduced again, to forty hours.
The court was changed again in 1947 to increase the role of the Commissioners, leaving the judges to conduct the judicial work, and a select few matters of arbitration including the basic wage and the minimum wage for women.
The Boilermakers Decision
The court was abolished in 1956 following a decision of the High Court in the Boilermakers' caseR v Kirby; Ex parte Boilermakers' Society of Australia
R v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; 94 CLR 254 was a case in which the High Court of Australia held that the judicial power of the Commonwealth could not be vested in a tribunal that also exercised non-judicial functions...
. The High Court held that the Court of Conciliation and Arbitration, as a tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
exercising the non-judicial power of arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
, could not also exercise judicial power
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
as a Chapter III Court
Chapter III Court
In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
. The decision became an important demonstration of the separation of powers in Australia
Separation of powers in Australia
The doctrine of separation of powers refers to the separation of the legislature, the executive and the judiciary. A strict separation is not maintained in Australia, following the Westminster system and the doctrine of responsible government. Nevertheless, it is clear that it has been heavily...
.
The Commonwealth Conciliation and Arbitration Commission
Following the decision, two new bodies were created to emulate the function of the defunct court; the Commonwealth Conciliation and Arbitration Commission (later the Australian Conciliation and Arbitration Commission and the Australian Industrial Relations Commission) was created to carry out the non-judicial functions, and the Commonwealth Industrial Court (later subsumed into the Federal Court of AustraliaFederal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
) was created to exercise judicial powers.
The Australian Industrial Relations Commission (which was originally called the Australian Industrial Relations Court) was established under the Concilliation and Arbitration Act which was finally passed under the Government of Prime Minister Reid. By the time that the Act was passed two Prime Ministers (Watson
Chris Watson
John Christian Watson , commonly known as Chris Watson, Australian politician, was the third Prime Minister of Australia...
and Deakin
Alfred Deakin
Alfred Deakin , Australian politician, was a leader of the movement for Australian federation and later the second Prime Minister of Australia. In the last quarter of the 19th century, Deakin was a major contributor to the establishment of liberal reforms in the colony of Victoria, including the...
) had both lost their control of Parliament due to disagreements about the content of the Act.
Throughout its time the Commission created Awards which covered a whole raft of industries. These Awards with Awards made by Industrial Relations Commissions of the respective six states of Australia acted as the unique system of minimum wage setting in Australia. The Commission also registered a large number of trade unions to assist in the Award formation process.
The Commission is famous for its cases on equal work and equal pay, as well as decisions on unfair dismissal
Unfair dismissal
Unfair dismissal is the term used in UK labour law to describe an employer's action when terminating an employee's employment contrary to the requirements of the Employment Rights Act 1996...
, and redundancy pay.
One issue which dogged the Commission was that of what "pertained to the relationship between employer and employee". This had been a question of importance, since the Constitution required the Commission settle industrial disputes. These disputes were later categorised as a "dispute about matters which pertained to the relationship between employer and employee." The question continued to surface and in 2004 the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in the case of Electrolux v AWU
Electrolux v AWU
The case of Electrolux v The Australian Workers' Union was a High Court of Australia decision of 2004.-The Background to the Case:The case dealt with whether bargaining agent's fees were able to be placed within an enterprise bargaining agreement as created by the Workplace Relations Act ...
applied the question (which had historically been applied to Awards) to Enterprise Bargaining Agreements. This led to around 6 months of industrial confusion until the Australian Industrial Relations Commission handed down the landmark decision of the Schefenacker, the Murray Bridge and the La Trobe University certified agreements (‘the three certified agreements case’). It was seen by many as fitting that the last significant decision made by the Australian Industrial Relations Commission was to conclusively determine which matter did or did not pertain.
Historical Role of the Australian Industrial Relations Commission
Throughout the years from 1904 to 2006 the Australian Industrial Relations Commission created Awards which set the minimum terms and conditions of employment for people who worked for certain employers. A standard Award would have approximately 20-30 conditions and would be around 40 pages in length. The Awards were periodically reviewed.The Australian Industrial Relations Commission would also certify enterprise bargaining agreements. These agreements were negotiation collective contracts commonly between a union (as representative of the employees on the site) and an employer of a site.
The Australian Industrial Relations Commission also registered trade unions and dealt with demarcation disputes between unions.
Finally the Australian Industrial Relations Commission dealt with unfair dismissal application.
Future of the Australian Industrial Relations Commission
In 2006, under the WorkChoicesWorkChoices
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the Workplace Relations Act 1996, the...
laws effected at the end of 2005 the role of the AIRC has been redefined. Its wage setting powers have largely been transferred to the Australian Fair Pay Commission
Australian Fair Pay Commission
The Australian Fair Pay Commission was an Australian legislative body created under the Howard Government's "WorkChoices" industrial relations law in 2006 to set the minimum rate of pay for workers...
. The AIRC's primary role will be award
Award (Australian industrial relations)
An award is a ruling handed down by either Fair Work Australia or by a state industrial relations commission which grants all wage earners in one industry the same conditions of employment and wages....
"modernisation", limited dispute settling powers and hearing unfair dismissal applications.
Under the Rudd Labor Government the AIRC was abolished. Its functions were transferred to a division within Fair Work Australia
Fair Work Australia
Fair Work Australia is the Australian industrial relations institution created by the Federal ALP Government's Fair Work Act 2009.. It commenced operation on 1 July 2009.-Functions:...
in January 2010.